


Registration of Trademarks 



UNDER THE 



New Trademark Act 



BY 

ARTHUR P. GREELEY 



Washington, D. C. 

JOHN BYRNE & CO. 

Law Book Publishers 

1905 



PUBLISHED BY 

JOHN BYRNE & CO. 



Foreign Patent and Trademark 
Laws 

By ARTHUR P. GREELEY 



A comparative study of the Patent and Trade- 
mark Laws of the world, with tabular 
statements of the essential features 
of such laws 



8vo — 319 pp. $5*00, Express Paid 



WASHINGTON, D. C. 



r^3 



Registration of Trademarks 

UNDER THE NEW 

TRADEMARK ACT 

OF THE 

United States 

With Notes on the Act 

BY 

ARTHUR P. GREELEY 

of the Patent Law Association of Washington, 
Member of Commission to Revise the Patent and 
Trademark Laws. Member of American Bar 
Association. Formerly Assistant Com- 
missioner of Patents 



Washington, D. C. 

JOHN BYRNE & CO. 

L,aw Book Publishers 

1905 



z&z 



V^Gt% 



Two Copies H 

15 1905 

CLASS ^ XX& N« 

COPY 3. 



Copyright, 1905 

BY 

ARTHUR P. GREELEY 



o; 






PREFACE. 

In the comparative study of Foreign Patent and 
Trademark Laws published a few years ago, I was com- 
pelled to point out, in referring to the trademark law of 
the United States, that such law, as embodied in the 
Act of 1881, did not give to registrants any remedy 
against infringers which the owner of an unregistered 
mark would not have under the common law, and that 
such law did not provide for giving force and effect to 
the provisions of the International Convention, as well 
as to call attention to the fact that such law was in other 
respects unsatisfactory. 

The commercial interests of the country are to be 
congratulated on the fact that Congress has recently 
passed a new trademark act, which, while perhaps not 
all that could be desired, goes far toward giving the re- 
lief which the owners and users of trademarks have 
justly asked at the hands of Congress. 

Some misapprehension of the intended meaning and 
purpose of this new Act as regards trademarks registered 
under the act of 1881, has arisen by reason of the fact 
that numerous circulars have been sent out to regis- 
trants urging re-registration, some of these circulars be- 
ing so worded as to create the impression that re-regis- 
tration is necessary to the preservation of existing rights, 
and that any delay in applying for re-registration may 
jeopardize such rights. Such an impression is not war- 
ranted by anything in the proposed trademark bill as 
originally drafted by me, on which the new act is based, 
and is not warranted by anything in the act as passed. 
It is the purpose of this pamphlet to correct this mis- 
apprehension, and, so far as possible at this time, to 
make clear the meaning of the act. 

Washington, D ? C, March 1, 1905. 



CONTENTS. 



Page. 

The New Trademark Act 7 

The Purpose of the New Act 8 

The Common L,aw of Trademarks 9 

Registration not Compulsory 10 

Who may Register Trademarks n 

What may be Registered 11 

The Form in which Trademarks are to be Registered . . 12 

The Fee for Registration 12 

Rights Acquired by Registration, the Right of Action . . 13 
Rights Acquired by Registration, Increase of Damages . . 13 
Rights Acquired by Registration, Destruction of Infring- 
ing Labels, &c 14 

Rights Acquired by Registration, Service and Enforce- 
ment of Injunction 14 

Desirability of Registration under the New Act 15 

Importance of Registration under the New Act 16 

Ten Year Marks 18 

Notice of Registration 19 

Registration of Trademarks by residents of Porto Rico 

and the Philippines 19 

Applications for Registration pending in the Patent 

Office 20 

Foreign Trademarks under the New Act 21 

History of the Trademark Act 23 

The Meaning of the New Act 26 

Text of the Trademark Act with notes 29 



THE NEW TRADEMARK ACT. 

For the first time in its history the United States has 
now upon its Statute books a Federal trademark law 
which is constitutional, and at the same time affords to 
trademarks registered under it fairly adequate protec- 
tion; permits the registration of practically all marks in 
which the users can fairly claim an exclusive right, and 
gives to foreign owners of trademarks the rights to 
which they are entitled under the provisions of treaties 
and conventions to which the United States is a party. 

This new trademark law is the Act entitled "An Act 
To authorize the registration of trademarks used in 
commerce with foreign nations or among the several 
States or with Indian tribes and to protect the same," 
approved February 20, 1905. This Act takes effect 
April 1, 1905, and supersedes all previous legislation 
relating to the registration and protection of trade- 
marks, without, however, in any way affecting existing 
rights acquired under common law or acquired by regis- 
tration under the Act of 1881. 

The new Act finds its constitutional basis in the third 
clause of Section 8, of Article I, of the Constitution, 
which, read in connection with the granting clause, is 
as follows : 

"The Congress shall have power to regulate com- 
merce with foreign nations and among the several 
States, and with the Indian Tribes." 

This is made clear in the reports of the Committees on 
Patents of the Senate and House of Representatives 
recommending the passage of the Act. 



THE PURPOSE OF THE NEW ACT. 

The main purpose of the new Act is to aid, so far as 
is within the powers conferred on Congress by the Con- 
stitution, American owners of trademarks in securing 
full protection for their trademarks within the United 
States and abroad. A further purpose of the Act is to 
so far facilitate and encourage registration that the reg- 
ister of trademarks may be made as complete as pos- 
sible, so that the public may know what marks are in 
use and who claims the exclusive right in them. 

The new Act is further intended to, and does, provide 
for giving to foreign owners of trademarks all of the 
rights, as regards the registration and protection of their 
trademarks, to which they are entitled under the pro- 
visions of treaties and conventions to which the United 
States is a party. 

In order to carry out its main purpose — that of aiding 
American owners of trademarks in securing protection 
of their trademarks in the United States and abroad — 
the Act contains provisions which, as stated in the report 
of the Committee on Patents of the House of Repre- 
sentatives, recommending the passage of the Act, 

"will permit the registration of all marks which 
could, under the common law as expounded by the 
courts, be the subject of a trademark and become 
the exclusive property of the party using the same 
as his trademark." 

For the purpose of facilitating and encouraging regis- 
tration, in order that the register of trademarks may be 
made complete for the information of the public, the Act 
in addition to reducing the registration fee to ten dollars, 
providing for the registration of all marks which under 



the common law can be considered trademarks, and 
providing that marks used in interstate commerce may- 
be registered, as well as those used in foreign commerce 
or commerce with Indian tribes, provides for giving to 
registrants advantages over those given by the common law S 
in respect to the extent of damages (Sees. 16 and 19) ; in re- 
spect to the delivery up for destruction of copies of infringing 
marks (Sec. 20) ; in respect to the enforcement of an in-" 
junction granted in any one of the circuit courts (Sec. 
20) ; in respect to the jurisdiction of the United States 
courts in controversies respecting the use of registered 
trademarks in interstate commerce (Sec. 16), and in 
respect to the exclusion from entry at custom houses of 
merchandise falsely bearing a registered trademark. 

It is believed that these provisions of the new Act will 
be effective to secure a very general registration of all 
trademarks in use in interstate commerce, and, as prac- 
tically all trademarks in use in the United States are 
used to a greater or less extent in interstate commerce, 
will be effective to make the register of trademarks so 
far complete that it may be relied on by the public for 
information as to what marks are in use. 

THE COMMON LAW OF TRADEMARKS. 

It is well settled by decisions of United States and 
State courts that, under what is termed the "common 
law of trademarks," the right of ownership in a trade- 
mark — that is, the right to its exclusive use — belongs 
to the person who is the first to adopt and use it, and 
that this right will be protected by injunction. It is also 
well settled by decisions of the courts, under what is 
termed the "doctrine of unfair competition," that no one 
will be permitted to copy a label or name used by a 
competitor in business or to otherwise so dress his 



10 

goods as to be successful in passing them off upon the 
purchasing public as the goods of the original user of 
such label or name or dress of goods, even though the 
label or name or dress of goods may not amount to a 
trademark. 

The new Act does not make any change in the com- 
mon law of trademarks or in the doctrine of unfair com- 
petition, Section 23 of the Act expressly providing, 

"That nothing in this Act shall prevent, lessen, im- 
peach, or avoid any remedy at law or in equity 
which any party aggrieved by any wrongful use of 
any trademark might have had if the provisions of 
this Act had not been passed." 

REGISTRATION NOT COMPULSORY. 

It is therefore clear that the owner of a trademark 
who fails to register it under the provisions of the new 
Act does not, by such failure, lose his right of ownership 
or forfeit his right to the protection of the courts against 
infringers. There is nothing in the new Act to compel 
registration of unregistered marks or of marks regis- 
tered under acts previously in force, in the sense of 
making registration in any way essential to the protec- 
tion of the right to a trademark. 

So far as concerns marks registered under previous 
Acts, the new Act, as was made clear at the hearings 
before the committees of Congress at which the Act 
was considered, would if, possible, have been so drawn 
as to give those who have registered their marks under 
the Act of 1881, the benefit of the additional protection 
afforded by the new Act without re-registration, but to- 
do this would have involved giving to certificates of reg- 
istration already issued a force and effect which they 
could not have had when issued, and it was decided that 
this could not be done. 



11 

But while the new Act does not compel registration 
of unregistered marks, and does not compel re-registra- 
tion of marks previously registered, the provisions of 
the new Act are such that the owners of unregistered 
trademarks entitled to registration under the new Act 
will find that the advantages resulting from registration 
will be so important that they cannot afford to fail to 
register, and the owners of trademarks registered under 
the Act of 1881 will probably find it worth while to re- 
register under the new Act for the sake of securing the 
additional remedies against infringers given by the new 
Act, though, unless they consider these additional reme- 
dies given by the new Act necessary for the protection 
of their rights against infringers, there is no need to re- 
register, as the certificates of registration issued to them 
under the Act of 1881 are still effective as record evi- 
dence of prima facie right to the registered marks and 
as sufficient evidence to compel the Patent Office to 
refuse to register the same mark to others. 

WHO MAY REGISTER TRADEMARKS. 

The new Act permits the registration of trademarks 
used in domestic commerce, provided that their use is 
not wholly within a single State. 

Under the Act of 1881, which continues in force up 
to April 1, 1905, only trademarks used in foreign com- 
merce or commerce with Indian tribes could be registered. 

WHAT MAY BE REGISTERED AS TRADE- 
MARKS. 

The new Act is intended to permit the registration of 
all marks which, under the common law as expounded 
by the courts, could be considered trademarks, and be- 



12 

come the exclusive property of the person using it as 
his trademark. The final decision as to the registra- 
bility of a mark offered for registration rests, not with 
the Commissioner of Patents, but with the Court of 
Appeals of the District of Columbia, a court composed 
\oi three judges. 

Under the Act of 1881, as construed by the Patent 
Office, only such marks as in the opinion of the Com- 
missioner of Patents could be considered trademarks in 
a strict technical sense were permitted to be registered, 
and from the Commissioner's decision refusing registra- 
tion there was no appeal, nor would mandamus lie to 
compel registration. 

THE FORM IN WHICH TRADEMARKS ARE TO 
BE REGISTERED. 

The new Act permits trademarks to be registered in 
the form in which they are actually used, and the Patent 
Office will not only require specimens of the mark as 
actually used to be filed, but will require the drawing 
of the mark to correspond with the specimens. 

Under the Act of 1881, applicants for registration 
have been required by the Patent Office to eliminate 
from the drawing of the mark, all but the features which 
were considered the essential features of the mark with 
the result that in many cases the trademark as regis- 
tered would not readily be recognized as the trademark 
actually used. 

THE FEE FOR REGISTRATION. 

The new Act fixes the fee for registration at ten dol- 
lars. 

Under the Act of 1881, the fee for registration was 
twenty-five dollars. 



13 



RIGHTS ACQUIRED BY REGISTRATION UN- 
DER THE NEW ACT. 

THE RIGHT OF ACTION. 

The new Act gives to the owner of a trademark regis- 
tered under the provisions of the Act a right of action 
in the United States Courts against an infringer who 
uses the mark in interstate commerce, as well as against 
an infringer who uses the mark in foreign commerce, or 
commerce with the Indian Tribes. 

Under the Act of 1881, the owner of a trademark reg- 
istered under that Act has a right of action in the United 
States Courts only against an infringer who is using the 
mark in foreign commerce or commerce with Indian 
Tribes, and under the decision of the Supreme Court in 
Warner v. Serle and Hereth, 191 U. S., 560, has a 
right of action in the United States Courts under the 
Act of 1881 only where both the owner of the mark and 
the infringer are using the mark in foreign commerce or 
commerce with Indian Tribes. 

RIGHTS ACQUIRED BY REGISTRATION. 
INCREASE OF DAMAGES. 

The new Act provides that where, in a suit either at 
law or in equity, for infringement of a trademark regis- 
tered under the Act, a verdict has been rendered in 
favor of the plaintiff or an injunction issued, the Court 
may, according to the circumstances of the case, enter 
judgment for increased damages to the extent of not 
more than three times the actual damages found, thus 
making it possible to compel the infringer to pay a 
penalty for his infringement, as well as to pay such 
damages as can be proved. The Act also provides that 




14 

in assessing profits in a suit in equity the plaintiff shall 
be required to prove defendant's sales only, and the 
defendant must prove all elements of cost which are 
claimed, thus materially aiding the plaintiff in recover- 
ing the damages actually due him. 

Under the Act of 1881, the owner of a registered 
trademark can recover no more than he could recover ^.j-H 
under the common law of trademarks, that is, such 
actual damages as can be proved, O^ly. 

RIGHTS ACQUIRED BY REGISTRATION. 
DESTRUCTION OF INFRINGING LABELS, ETC. 

The new Act provides that in any case involving the 
right to a trademark registered under the provisions of 
the Act in which a verdict is found for the plaintiff, or an \ 
injunction issued, the court may order the defendant to \^ 
deliver up for destruction all labels, signs, prints, pack- 
ages, wrappers or receptacles bearing the infringing 
trademark, which may be in his possession, thus subject- 
ing the infringer as a penalty for his infringement, to the 
loss of his stock of labels, packages, etc. 

The Act of 1881 contains no such provisions, and no 
such remedy is given under the common law. 

RIGHTS ACQUIRED BY REGISTRATION. 
SERVICE AND ENFORCEMENT OF INJUNC- 
TION. 

The new Act provides that an injunction granted 
upon hearing, after notice to the defendant, to prevent 
the violation of any right of the owner of a trademark 
registered in accordance with the provisions of the Act, 
by any Circuit Court of the United States, or by. a judge 



15 

thereof, may be served on the parties against whom 
such injunction may be granted anywhere in the 
United States where they may be found, and may be en- 
forced by proceedings to punish for contempt or other- 
wise by the court by which such injunction was granted, 
or by any other Circuit Court or judge thereof in the 
United States, or by the Supreme Court of the District 
of Columbia, or a judge thereof. This makes it practi- 
cally impossible for an infringer to avoid service of the 
injunction or to avoid punishment, if he attempts to 
continue infringement anywhere in the United States. 

The Act of 1881 contains no such provision, nor is the 
owner of a trademark entitled to such remedy under the 
common law. 



DESIRABILITY OF REGISTRATION UNDER 
THE NEW ACT. 

The extension of the right of action to include infring- 
ers who are using the registered mark in interstate com- 
merce and the enlargement of the remedy against in- 
fringers provided by the new Act, as above pointed out, 
make it important for owners of trademarks who have 
not registered their trademarks to do so and make it 
desirable for those who have registered their trade- 
marks under the Act of 1881 to re-register them under 
the new Act. 

The reduction of the fee for registration to ten dollars 
makes the cost of registration slight in comparison with 
the protection afforded by registration under the new 
Act. Trademarks will be registered in the form in 
which they are actually used, and applicants for regis- 
tration will not be required to restrict their drawings 
to a showing of the "essential features, ,, and, further, 



16 

applicants will not be required in the description to 
point out the "essential features" of their marks, or to 
otherwise limit their descriptions. The registration of 
a trademark under the new Act, if the statement is 
properly drawn, will, therefore, be a registration of the 
trademark actually used, and need not be restricted to 
particular features, so that the question of infringement 
will be, as under the common law, a question whether 
the alleged infringing mark so far resembles the trade- 
mark actually used by the registrant as to deceive pur- 
chasers, and not whether the alleged infringing mark 
includes the precise features which may have been spe- 
cified as the so-called "essential features" of the mark. 
In other words, the description of a trademark regis- 
tered under the new Act, if properly drawn, need not 
limit the registrant to any greater extent than he would 
be limited under the common law. 

The reasons which have existed for avoiding registra- 
tion under the Act of 1881, on account of the require- 
ment of the Patent Office for a statement of "essential 
features" or for the restriction of the drawing to a 
showing of the "essential features" only, and the strict 
construction placed, in some cases, by the courts on the 
certificate of registration no longer exist. 

IMPORTANCE OF REGISTRATION UNDER 
THE NEW ACT. 

While registration under the new Act does not create 
any property right in a trademark and registration of a 
trademark by any one other than the owner of it, that 
is the person who was the first to adopt and use it, does 
not deprive the owner of his right to it or prevent or 
lessen his right to protection, under the common law, 



17 

there are some provisions of the new Act which make 
it advisable for owners of marks, not already registered 
under the Act of 1881, to file their applications for regis- 
trations with reasonable promptness. 

Trademarks filed for registration if within the pro- 
visions of the Act and not identical with or closely re- 
sembling registered or known marks are required to be 
published in the Official Gazette of the Patent Office, 
and, if within thirty days from such publication, the 
Patent Office is not notified of opposition to their regis- 
tration, the certificates of registration are issued. The 
effect of the issuance of a certificate of registration is 
to make the registrant the prima facie owner of the 
trademark. This is necessarily so, even if the registrant 
is not in fact the owner of the mark. 

If the owner of a mark for registration of which an- 
other has applied, is informed of the publication of the 
application for registration and files his notice of oppo- 
sition he will have little difficulty in preventing the issu- 
ance of the certificate of registration by a proper pre- 
sentation before the Patent Office of the proof of his 
right to the mark, but in order to be sure of obtaining 
the necessary information in time to file his notice of 
opposition it will be necessary to watch the Official 
Gazette as it is issued from week to week. If such 
owner overlooks or otherwise fails to be informed of 
the publication of an application for registration of his 
mark by another, he cannot prevent the issuance of the 
certificate of registration, and must either bring proceed- 
ings in the Patent Office to cancel the certificate of reg- 
istration, as provided for in the new Act, or must seek 
his remedy in the courts. 

Obviously it will be less expensive for the owners of 
trademarks to register their marks than to be com- 



18 

pelled to oppose the registration of their marks by 
others or to otherwise defend their rights against those 
who by reason of having secured registration have a 
prima facie right to the marks. 

The new Act thus, while not compelling registration 
in the sense of abrogating or lessening the common law 
right, makes it necessary for the owner of an unregis- 
tered mark to register it if he wishes to avoid the possi- 
ble expense of overcoming the effect which may arise 
from its registration by another. In this sense the pro- 
visions of the new Act respecting the publication of 
applications for opposition would seem to have an effect 
to make registration practically compulsory. 

TEN-YEAR MARKS. 

In the consideration of the new Act, before its pass- 
age, attention was called to the fact that while, as then 
drawn, it provided for the registration of all marks 
which would under the common law be considered 
trademarks, it did not provide for the registration of 
certain marks which by reason of being individual 
names or in some sense descriptive or geographical, 
were not such marks as could at the date of their adop- 
tion be held to be trademarks, but which by reason of 
long continued exclusive use as trademarks had come 
to be recognized by the purchasing public as the dis- 
tinguishing marks of the person using them, and had 
thus, by the acquiescence of the public, become in effect 
trademarks, in which the users had vested rights recog- 
nized by the courts as entitled to protection under the 
"doctrine of unfair competition." In order to give to 
the users of such marks the advantages of the new Act, 
the Committee on Patents of the House of Representa- 



19 

lives added to Section 5 the final proviso, under 
which it is possible for a mark which has been in actual 
and exclusive use as a trademark for ten years immedi- 
ately preceding the passage of the Act to be registered. 
This proviso is similar in intended meaning to the 
Act of August 5, 1882, with reference to marks in use 
prior to the passage of the Act of 1881. The British 
Trademark Act of 1875 contains a similar provision. 

NOTICE OF REGISTRATION. 

The new Act requires the registrant of a trademark to 
give notice to the public of the fact of registration by 
affixing the words, "Registered in U. S. Patent Office" 
or "Reg. U. S. Pat. Off." on the trademark, or where 
that cannot be done, by affixing a label containing a 
like notice on the package. Failure to give this notice 
does not affect the right of ownership or the right to 
bring suit, but does prevent the recovery of damages 
unless it is proved that the defendant was duly notified 
of infringement and continued to infringe after notice. 

The form of notice described should be followed 
strictly, as it is possible that no notice of registration 
given in any form other than that prescribed would be 
held by the courts to be sufficient to permit of the re- 
covery of damages. 

REGISTRATION OF TRADEMARKS BY RESI- 
DENTS OF PORTO RICO AND THE PHIL- 
IPPINES. 

The new Act expressly provides that in construing 
the Act the United States includes and embraces all 
territory which is under the jurisdiction and control of 



20 

the United States, and the word "States" includes and 
embraces the District of Columbia, the Territories of the 
United States, and such other territory as may be un- 
der the jurisdiction and control of the United States. 

The purpose of this provision is to enable persons 
located in Porto Rico, the Philippines, and any other 
territory which is, for the time being, under the juris- 
diction and control of the United States to secure the 
advantages of the Act, for the protection of their trade- 
marks, and to make it clear that "commerce among the 
several States" is not to be limited to commerce among 
the States in a technical sense, but is to be construed 
to include commerce between the District of Columbia 
and a State, between a State and a Territory, between a 
State and Porto Rico or the Philippines, between a Ter- 
ritory and another Territory, or between Porto Rico 
and the Philippines; in other words, between any por- 
tion of the territory of the United States having its 
distinctive government, whether State, Territorial or 
other form of government, and any other portion. 

APPLICATIONS FOR REGISTRATION PEND- 
ING IN THE PATENT OFFICE. 

Under the provisions of the new Act, any application 
for registration of a trademark pending at the date of 
the passage of the Act may be amended to bring it 
within the provisions of the Act and may be proceeded 
with and registration secured without the payment of 
further fee. 

The effect of this provision is not limited to the pend- 
ing applications which have not been rejected, but ap- 
plies to all alike, including those which have been finally 
rejected and even those which have been refused by the 



21 

Commissioner on appeal. As there is no provision of 
law under which an application for registration of a 
trademark can be held to be abandoned by failure to 
prosecute, all applications which have been filed since 
the Act of 1881 went into effect and have been refused, 
may be proceeded with without the payment of any 
fee. 



FOREIGN TRADEMARKS UNDER THE NEW 

ACT. 

The new Act gives to foreign owners of trademarks 
all of the rights to which they are entitled under the 
treaties and agreements between the United States and 
certain foreign nations, and particularly provides for 
giving full force and effect to the provisions of the Con- 
vention for the Protection of Industrial Property (com- 
monly referred to as the International Convention), 
signed at Paris March 20, 1883, to which the United 
States became a party in 1887. Under certain of the 
treaties between the United States and foreign nations 
owners of trademarks who are subjects or citizens of 
such foreign nations are entitled to protection for their 
trademarks in the United States so long as their trade- 
marks are protected in their own countries. Under the 
provisions of the International Convention, the owners 
of trademarks who are located in any of the countries 
which are parties to the convention, are entitled to the 
same advantages as regards the registration and protec- 
tion of their trademarks that are enjoyed by citizens of 
the United States. 

In the treaties between the United States and foreign 
nations respecting trademarks, it is provided that recip- 
rocal protection shall be given for their trademarks to 



22 

the owners of trademarks of the respective countries. 
It is commonly required in the foreign countries, as a 
condition precedent to registration and protection of a 
trademark owned by a United States citizen, that it shall 
have been registered in the United States. The new Act 
therefore provides that, as a condition precedent to regis- 
tration under the Act, a foreign owner of a trade- 
mark must, as establishing the fact of ownership, show 
that he has registered the mark in his own country. But 
as it is not required by the treaties as a condition prece- 
dent to protection, that the owner of a trademark shall 
be required to establish any fact other than the fact of 
ownership, it is expressly provided by the new Act that 
the foreign owner of a trademark applying for registra- 
tion need not make any statement as to actual use of 
the mark in commerce with the United States. This is 
clearly intended to and does permit a foreign owner of 
a trademark to secure registration and the other ad- 
vantages of the new Act in advance of the actual use of 
the mark in commerce with or within the United States. 

Section 4 of the new Act provides for giving the for- 
eign owner of a trademark the advantage of the four 
months' delay of priority provided for by the Interna- 
tional Convention. 

Under Section 27 of the new Act, foreign owners of 
trademarks are given the same rights as are enjoyed 
by domestic owners of trademarks as regards the right 
to stop the importation into the United States of any 
goods bearing an infringing trademark. This section is 
also intended to extend to foreigners entitled thereto 
under the provisions of treaties or conventions the same 
advantages in respect to stopping the importation of 
goods bearing a copy or simulation of a commercial 
name or a false indication of origin, that are enjoyed by 
citizens of the United States. 



23 

So far as the right of ownership or right of action 
against infringers is concerned, it is doubtful if the new 
Act adds materially to the rights to which foreign owners 
of trademarks registered under the Act of 1881 are enti- 
tled without re-registration under the new Act. But 
as regards the matter of stopping the importation of 
goods bearing an infringing trademark, the new Act 
clearly affords material advantages to which foreign 
owners of trademarks are not entitled unless they regis- 
ter their marks under the new Act. 

It, therefore, seems to be necessary for foreign owners 
of trademarks registered under the Act of 1881 to re- 
register their marks if they desire to secure this advan- 
tage. 

HISTORY OF THE TRADEMARK ACT. 

The new Act, except the provisions regarding opposi- 
tion and cancellation, is practically, and in many of its 
provisions precisely, identical with the bill proposed by 
the author as a member of the Commission to Revise the 
Patent and Trademark Laws created by Act of Congress, 
approved June 4, 1898, in the report of the Commission 
made to Congress in December, 1900 (Senate Docu- 
ment No. 20, 56th Congress, 26. Session). 

The bill proposed by the author, together with the bill pro- 
posed by the other members of the Commission, was 
introduced in both the Senate and House of Representa- 
tives in the 56th Congress, the bill proposed by the author 
being introduced in the Senate by Mr. Pritchard, as 
S. 5026. 

The bills were referred to the Committees on Patents 
of the respective Houses, but were not reported on. 

Both bills were introduced in the 57th Congress, the 
bill proposed by the author being introduced in the Senate by 



24 

Mr. Pritchard, as S. 5289, and in the House of Repre- 
sentatives by Mr. Reeves, as H. R. 15026, and were re- 
ferred to the Committees on Patents of the respective 
Houses, but were not reported on. 

The proposed bills were discussed at the meeting of 
the American Bar Association in August, 1901, and a 
committee of that Association was requested to report 
on the matter. At the meeting of the Association in 
August, 1903, the committee reported in favor of the 
bill proposed by the author, with some amendments, and 
after a full discussion of the matter, the Association 
endorsed the bill as reported by the committee with cer- 
tain amendments. 

The bill as endorsed by the American Bar Association 
was also endorsed, after very full consideration, by the 
Patent Law Association of Washington, and was intro- 
duced during the first session of the 58th Congress, as 
S. 3219, introduced by Mr. Kittredge, and H. R. 11672, 
introduced by Mr. Denny, the bills in the re- 
spective Houses being referred to the Committees on 
Patents. A number of other bills respecting trademarks 
were introduced during the first session of the 58th 
Congress, and were referred to the Committees on Pat- 
ents. After extended hearings and consideration of 
these bills by the committees, it became apparent that in 
order to meet the views of the members of the commit- 
tees it would be necessary to eliminate many of the 
amendments made by the American Bar Association, 
and a new bill was, after conference between representa- 
tives of the American Bar Association, the Patent Law 
Association and the author, agreed upon, the bill so agreed 
on being in substance the bill originally proposed by the 
author with some amendments. This bill was introduced 
late in the first session of the 58th Congress by Mr. Cur- 
rier, as H. R. 15223, and was fully discussed before the 



25 

Committees on Patents of both Houses. No report on 
this bill or on any trademark bill was made during the 
first session of the 58th Congress, but the members of 
the Committee on Patents of the House of Representa- 
tives were so far satisfied of the need of a law which 
would provide for the registration of trademarks used 
in interstate commerce, reduce the fee for registration, 
give additional protection to registered trademarks, and 
radically change the practice of the Patent Office in the 
matter of the registration of trademarks that they re- 
quested Mr. Bonynge, of Colorado, a member of the 
committee, to go into the matter fully during the recess 
of Congress and report a bill, which would embody the 
views of the committee. Mr. Bonynge reported a bill, 
which, with certain amendments, is the new Act, the bill 
heing introduced as H. R. 15803, and being referred to the 
Committee on Patents. After hearings on the bill, at 
which the American Bar Association, the Patent Law 
Association, the New York Bar Association and the 
National Association of Manufacturers were repre- 
sented and advocated the passage of the bill, certain 
amendments were agreed to, the most important being 
the addition of the final proviso of Section 5 of the Act, 
in regard to marks in use for ten years, and the bill with 
these amendments was introduced on December 14, 
1904, as H. R. 16560. On December 19, 1904, the Com- 
mittee on Patents reported at length recommending the 
passage of the bill (Report No. 3147), and on January 
14, 1905, the bill was passed by the House of Repre- 
sentatives. The bill then went to the Senate and was 
referred to the Senate Committee on Patents, and after 
a hearing certain amendments in the bill as passed by 
the House were recommended. The bill with these 
-amendments was passed by the Senate on January 27, 



26 

1905. A conference being found necessary for the con- 
sideration of the amendments made by the. Senate, con- 
ference committees were appointed by the respective 
Houses. The conference committee made a report fur- 
ther amending the bill, and the report was agreed to by 
the Senate on February 9, 1905, and by the House of 
Representatives on February 11, 1905. 

The bill was finally approved on February 20, 1905. 

During the time that the bill has been before Congress, 
either in its original form or in the several forms in which it 
has from time to time been presented, it has been extensively 
discussed in various technical journals and to some extent in 
the newspaper press. Few measures have been more fully 
discussed than this bill, and few measures have been 
more fully endorsed or more earnestly urged by the 
commercial interests of the country. The National As- 
sociation of Manufacturers and the International Ad- 
vertisers' Association, both as organizations and 
through their individual members, have favored the new 
Act and actively advocated its passage as necessary for 
the protection of the rights of American owners and 
users of trademarks. 



THE MEANING OF THE NEW ACT. 

It is hardly to be expected that an Act which so ex- 
tensively changes the trademark law would be in all 
respects free from obscurity or would fully meet the 
views of every one interested in the protection of trade- 
marks. A provision by which a willful infringer of a 
trademark could be punished by fine or imprisonment 
was earnestly advocated by owners of trademarks, but 
while such a provision is found in the trademark laws 
of all foreign nations and is found in the trademark 



27 



laws of nearly all of the States, and is believed to be a 
reasonable provision, the opposition to the enactment 
of such a provision at the present time was such that it 
was not thought best to insist upon it. The Act is, how- 
ever, so drawn that if hereafter the necessity and expe- 
diency of such a provision can be made clear, it can be 
enacted as a separate Act without changing the present 
Act. 

The question of the constitutionality of the new Act 
is fully considered in the report of the Commission to 
Revise the Patent and Trademark Law (Senate Docu- 
ment No. 20, 56th Congress, 2d Session), in both the 
majority report and the minority report, and is also 
fully discussed in the report of the Committee on Pat- 
ents of the House of Representatives (Report No. 3147, 
58th Congress, 3d Session) and in a paper read by Mr. 
R. H. Parkinson, of Chicago, before the Patent, Trade- 
mark and Copyright Section of the American Bar Asso- 
ciation, and published in the report of that Association 
for 1903. 

The meaning and effect to be given to the provisions 
of the new Act cannot be certainly determined until it 
has been brought before the courts and judicially con- 
strued. In construing the Act, great weight will no 
doubt be given to the explanation of the intended mean- 
ing of the several sections of the Act as found in the 
notes accompanying the original draft of the Act in the 
report of the Commission to Revise the Patent and 
Trademark laws and in the explanations contained in 
the report of the Committee on Patents, in view of the 
fact that these notes and explanations were before Con- 
gress when the Act was passed and must be presumed 
to have been carefully considered. In default of judicial 
interpretation these notes and explanations furnish the 



28 

best available aid in determining the meaning of the new 
Act. 

Appended is the full text of the new Act, with notes 
on each section, these notes being taken from the notes 
above referred to as accompanying the original draft of 
the bill in the report of the Commission, so far as appli- 
cable to the Act as passed, and from the report of the 
Committee on Patents. 



29 
[Public— No. 84.] 

An Act To authorize the registration of trademarks used in com- 
merce with foreign nations or among the several States or with Indian 
tribes, and to protect the same. 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America, in Congress as- 
sembled, That the owner of a trademark used in com- 
merce with foreign nations, or among the several 
States, or with Indian tribes, provided such owner shall 
be domiciled within the territory of the United States, 
or resides in or is located in any foreign country which, 
by treaty, convention, or law, affords similar privileges 
to the citizens of the United States, may obtain registra- 
tion for such trademark by complying with the follow- 
ing requirements: First, by filing in the Patent Office 
an application therefor, in writing, addressed to the 
Commissioner of Patents, signed by the applicant, spe- 
cifying his name, domicile, location, and citizenship ; the 
class of merchandise and the particular description of 
goods comprised in such class to which the trademark 
is appropriated; a description of the trademark itself, 
and a statement of the mode in which the same is applied 
and affixed to goods, and the length of time during which 
the trademark has been used. With this statement shall 
be filed a drawing of the trademark, signed by the appli- 
cant, or his attorney, and such number of specimens of 
the trademark, as actually used, as may be required by 
the Commissioner of Patents. Second, by paying into 
the Treasury of the United States the sum of ten dol- 
lars, and otherwise complying with the requirements 
of this Act and such regulations as may be prescribed 
by the Commissioner of Patents. 

This section provides for the registration of 
trademarks used in interstate commerce, as well as 



I. 



30 

those used in foreign commerce, and commerce 
with the Indian tribes. It was the opinion of 
Thomas Jefferson, expressed in a report made by 
him to the Second Congress, that the regulation of 
trademarks used in commerce "among the several 
States" was within the power of Congress. Recent 
decisions of the Supreme Court bearing upon the 
subject of what constitutes interstate commerce, and 
the constitutional power of Congress in respect to 
the regulation of such commerce, warrant the be- 
lief that there can be no serious question of the 
power of Congress to provide for the registration of 
trademarks used in interstate commerce. 

This section follows the Act of 1881 in limiting 
the right of registration by foreign owners of trade- 
marks to those located in countries with which 
reciprocal arrangements in this regard have been 
established. It is desirable and important in the 
interests of foreign trade that such arrangements 
be entered into with any and every foreign country 
in which American manufacturers may seek a mar- 
ket for their goods, but such arrangements can be 
secured only on the basis of reciprocity. To give 
to foreigners generally the same rights as are given 
to American owners of trademarks would make it 
possible for foreign countries to exclude our manu- 
facturers from the advantages of their trademark 
laws without detriment to the interests of their own 
manufacturers. 

Sec. 2. That the application prescribed in the fore-' 
going section, in order to create any right whatever in 
favor of the party filing it, must be accompanied by a 
written declaration verified by the applicant, or by a 
member of the firm or an officer of the corporation or 
association applying, to the effect that the applicant 
believes himself or the firm, corporation, or association 
in whose behalf he makes the application to be the 
owner of the trademark sought to be registered, and 



31 



that no other person, firm, corporation, or association, 
to the best of the applicant's knowledge and belief, has 
the right to such use, either in the identical form or in 
such near resemblance thereto as might be calculated to 
deceive; that such trademark is used in commerce 
among the several States, or with foreign nations, or 
with Indian tribes, and that the description and drawing 
presented truly represent the trademark sought to be 
registered. If the applicant resides or is located in a 
foreign country, the statement required shall, in addi- 
tion to the foregoing, set forth that the trademark has 
been registered by the applicant, or that an application 
for the registration thereof has been filed by him in the 
foreign country in which he resides or is located, and 
shall give the date of such registration, or the applica- 
tion therefor, as the case may be, except that in the 
application in such cases it shall not be necessary to 
state that the mark has been used in commerce with the 
United States or among the States thereof. The veri- v 
fication required by this section may be made before 
any person within the United States authorized by law 
to administer oaths, or, when the applicant resides in a 
foreign country, before any minister, charge d'affaires, 
consul, or commercial agent holding commission under 
the Government of the United States, or before any 
notary public, judge, or magistrate having an official 
seal and authorized to administer oaths in the foreign 
country in which the applicant may be whose authority 
shall be proved by a certificate of a diplomatic or con- 
sular officer of the United States. 



The first part of this section is substantially iden- 
tical in its requirements with Section 2 of the Act 
of 1881. 

The second part prescribes the declaration to be 



32 

made by a foreign owner of a trademark. As the 
right of a foreign citizen or subject to the protec- 
tion for his trademark is secured to him by treaty 
while the right of the applicant who is domiciled in 
the United States to protection necessarily depends 
upon his use of the mark in such commerce as is 
within Congressional control, it is evident that the 
facts necessary to be shown in the one case are not 
the same as in the other. The requirement that the 
foreign applicant show affirmatively that he has 
regularly filed an application for registration of his 
trademark in the country in which he is located is 
necessary as a prima facie showing that he is in fact 
the owner of the mark. Such a requirement is 
found in the laws of nearly all foreign countries. 

While it is believed that it would be desirable to 
dispense with the requirement that an applicant for 
registration make oath as to the facts which entitle 
him to be considered the owner of the trademark 
for which he seeks registration, it does not appear 
that this can be done in view of the fact that only 
those trademarks which are used in interstate or 
foreign commerce or commerce with the Indian 
tribes are within the regulating power of Congress. 
It therefore appears that in order to be entitled to\ 
registration the applicant must make a prima facie 
showing that he has satisfied the conditions neces- 
sary to bring his trademark within the class of 
trademarks which may be registered. 

The section as drawn recognizes as entitled to 
registration trademarks used by associations, fol- 
lowing in this respect the laws of many of the for- 
eign countries as well as the laws of many of the 
States of the United States. 

The final sentence of the section specifies before 
whom the declaration may be made, following in 
its language section 4892 of the Revised Statutes. 

Sec. 3. That every applicant for registration of a 
trademark, or for renewal of registration of a trade- 



33 

mark, who is not domiciled within the United States, 
shall, before the issuance of the certificate of registra- 
tion, as hereinafter provided for, designate by a notice 
in writing, filed in the Patent Office, some person resid- 
ing within the United States on whom process or notice 
of proceedings affecting the right of ownership of the 
trademark of which such applicant may claim to be the 
owner, brought under the provisions of this Act or un- 
der other laws of the United States, may be served, with 
the same force and effect as if served upon the applicant 
or registrant in person. For the purposes of this Act it 
shall be deemed sufficient to serve such notice upon such 
applicant, registrant, or representative by leaving a copy 
of such process or notice addressed to him at the last ad- 
dress of which the Commissioner of Patents has been 
notified. 

The purpose of this section is to require appli- 
cants for registration of trademarks who reside out 
of the jurisdiction of the United States courts to 
place themselves constructively within such juris- 
diction. Being given the advantages of the laws 
of the United States so far as bringing suits against 
others for the protection of their rights to their 
trademarks, they should submit to the jurisdic- 
tion of the courts of the United States in case suits 
affecting their rights to their trademarks are 
brought against them. 

Such a provision is contained in the trademark 
laws of many, in fact nearly all, of the countries of 
commercial importance. 

Sec. 4. That an application for registration of a 
trademark filed in this country by any person who has 
previously regularly filed in any foreign country which, 
by treaty, convention, or law, affords similar privileges 



34 

to citizens of the United States an application for regis- 
tration of the same trademark shall be accorded the 
same force and effect as would be accorded to the same 
application if filed in this country on the date on which 
application for registration of the same trademark was 
first filed in such foreign country : Provided, That such 
application is filed in this country within four months 
from the date on which the application was first filed 
in such foreign country : And provided, That certificate 
of registration shall not be issued for any mark for regis- 
tration of which application has been filed by an appli- 
cant located in a foreign country until such mark has 
been actually registered by the applicant in the country 
in which he is located. 



This is intended to provide for giving full force 
and effect to article 4 of the International Conven- 
tion, which, so far as it relates to trademarks, is as 
follows : 

"Art. 4. Anyone who shall have regularly de- 
posited an application for a * * * trade or com- 
mercial mark in one of the contracting States shall 
enjoy for the purpose of making the deposit in the 
other States, and under reserve of the rights of 
third parties, a right of priority during the periods 
hereinafter determined. 

"In consequence, the deposit subsequently made 
in one of the other States of the Union before the 
expiration of these periods cannot be invalidated 
by acts performed in the interval, especially by 
another deposit, * * * by the employment of 
the mark. 

"The periods of priority above mentioned shall 
b e * * * three months for trade or commer- 
cial marks. They shall be augmented by one 
month for countries beyond the seas." 



35 

Sec. 5. That no mark by which the goods of the owner 
of the mark may be distinguished from other goods of 
the same class shall be refused registration as a trade- 
mark on account of the nature of such mark unless such 
mark — 

(a) Consists of or comprises immoral or scandalous 
matter; 

(b) Consists of or comprises the flag or coat of arms 
or other insignia of the United States, or any simulation 
thereof, or of any State or municipality, or of any 
foreign nation: Provided, That trademarks which are 
identical with a registered or known trademark owned 
and in use by another, and appropriated to merchandise 
of the same descriptive properties, or which so nearly 
resemble a registered or known trademark owned and 
in use by another, and appropriated to merchandise of 
the same descriptive properties, as to be likely to cause 
confusion or mistake in the mind of the public, or to de- 
ceive purchasers, shall not be registered: Provided, 
That no mark which consists merely in the name of an 
individual, firm, corporation, or association, not writ- 
ten, printed, impressed, or woven in some particular or 
distinctive manner or in association with a portrait of 
the individual, or merely in words or devices which are 
descriptive of the goods with which they are used, or 
of the character or quality of such goods, or merely a 
geographical name or term, shall be registered under 
the terms of this Act: Provided further, That no por- 
trait of a living individual may be registered as a trade- 
mark, except by the consent of such individual, evi- 
denced by an instrument in writing: And provided 
further, That nothing herein shall prevent the registra-\ 
tion of any mark used by the applicant or his prede- y 
cessors, or by those from whom title to the mark is de- 
rived, in commerce with foreign nations or among the 



36 

several States, or with Indian tribes, which was in \* 
actual and exclusive use as a trademark of the applicant 
or his predecessors from whom he derived title for ten 
years next preceding the passage of this Act. 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the. Act, make the following statement in 
reference to this section: 

In the past there has been considerable complaint 
in regard to what could be registered under the 
existing law as a trademark. Much of the time of 
the committee in the hearing of the bill has been 
consumed in a discussion upon this particular fea- 
ture of the legislation. Section 5 of the proposed 
bill, we believe, will permit the registration of all 
marks which could, under the common law as ex- 
pounded by the courts, be the subject of a trade- 
mark and become the exclusive property of the 
party using the same as his trademark. 

The language of section 5 is taken almost ver- 
batim from section 5 of the bill proposed by Mr. 
Arthur P. Greeley, as contained in the report of 
the Commissioners appointed to revise the statutes 
relating to patents, trade and other marks, and 
trade and commercial names, under the Act of 
Congress approved June 4, 1898. Full protection 
is given by the court, under the doctrine of unfair 
competition, to the users of such marks as do not, 
under the common law, constitute technically what 
is known as a trademark, and which can become 
the subject of exclusive ownership. By other sec- 
tions of the bill, to which attention will be called 
later, provision is made for an appeal from the de- 
cision of the Commissioner of Patents to the Dis- 
trict Court of the District of Columbia from a de- 
cision refusing the registration of a trademark. By 
these provisions of the bill it would seem that there 
could not be a conflict of decisions, about which so 
much complaint has been made in the past. 



37 

Through the decisions of the courts a uniform sys- 
tem and uniform rules governing and controlling 
the registration of marks will in time be adopted. 

A proviso has been added permitting all marks 
that have been in actual use as trademarks for a 
period of ten years to be registered. 



The added proviso is intended to cover substan- 
tially the same ground that is covered by the Act 
of August 5, 1882, which is as follows: 

"That nothing contained in the law entitled 'An 
Act to authorize the registration of trademarks and 
protect the same,' approved March third, eighteen 
hundred and eighty-one, shall prevent the registry 
of any lawful trademark rightfully used by the ap- 
plicant in foreign commerce or commerce with In- 
dian tribes at the time of the passage of said Act." 

This Act is similar to, and no doubt was sug- 
gested by, the provisions of the British trademark 
law in reference to what are known as "old marks ;" 
that is, marks in use prior to the date of the 
passage of the first law which provided for registra- 
tion of trademarks and defined what should be 
registrable as trademarks. This provision is found 
in section 64 of the Patents, etc., Acts, 1883-1888, 
and is as follows: 

"(3) Provided as follows: 

"(ii) Any special and distinctive word or words, 
letter, figure, or combination of letters or figures 
or of letters and figures, used as a trademark be- 
fore the thirteenth day of August, one thousand 
eight hundred and seventy-five, may be registered 
as a trademark under this part of this Act." 

This is in recognition of the fact that by long- 
continued use in public a mark which at the date of 
its adoption might be open to objection as being 
descriptive or geographical or otherwise not so far 
arbitrary or fanciful as to be capable at once of ex- 



38 

elusive appropriation, may become known to the 
public as the distinctive mark of its user, and has 
therefore come to be of value to him, and of the 
necessity in the interests of fair competition in 
trade of giving to such "old marks" the protection 
given to marks which are technically trademarks. 
Without such a provision, such marks not being 
registrable in this country would not be registrable 
in the foreign countries which require registration 
here as a condition precedent to protection there, 
and such requirement is made by the laws of most 
foreign countries. 

Sec. 6. That on the filing of an application for regis- 
tration of a trademark which complies with the re- 
quirements of this Act, and the payment of the fees 
herein provided for, the Commissioner of Patents shall 
cause an examination thereof to be made ; and if on such 
examination it shall appear that the applicant is entitled 
to have his trademark registered under the provisions 
of this Act, the Commissioner shall cause the mark to 
be published at least once in the Official Gazette of the 
Patent Office. Any person who believes he would be 
damaged by the registration of a mark may oppose the 
same by filing notice of opposition, stating the grounds 
therefor, in the Patent Office within thirty days after 
the publication of the mark sought to be registered, 
which said notice of opposition shall be verified by the 
person filing the same before one of the officers men- 
tioned in section two of this Act If no notice of opposi- 
tion is filed within said time the Commissioner shall 
issue a certificate of registration therefor, as herein- 
after provided for. If on examination an application is 
refused, the Commissioner shall notify the applicant, 
giving him his reasons therefor. 



39 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the 
passage of the Act, state as follows in reference to 
the above section: 

The procedure provided by the bill for the regis- 
tration of trademarks is similar in many respects 
to the procedure in patent cases. When the appli- 
cation for registration is filed section 6 provides for 
an examination of the mark offered for registration. 
If upon such examination the application is refused, 
notice is given to the applicant, in order that he may 
appeal, if he so desires, from the decision. The 
procedure for appeals is regulated by other sections 
of the bill. If, on the other hand, the examination 
discloses that the mark is entitled to registration, 
then the Act provides that the Commissioner shall 
cause the mark to be published at least once in the 
Official Gazette of the Patent Office. The purpose 
of this publication is apparent. Owners of trade- 
marks ought not to have their rights to the use of 
a trademark jeopardized by the registration of 
similar trademarks by other parties not entitled to 
the use of the same. Some notice should be given 
whereby the true owners of marks may have an 
opportunity to be heard by the Commissioner of 
Patents before any mark is registered and given, 
by reason of such registration, the evidence of 
ownership provided for by the terms of the bill. 

Sec. 7. That in all cases where notice of opposition 
has been filed the Commissioner of Patents shall notify 
the applicant thereof and the grounds therefor. 

Whenever application is made for the registration of 
a trademark which is substantially identical with a 
trademark appropriated to goods of the same descrip- 
tive properties, for which a certificate of registration 
has been previously issued to another, or for registra- 
tion of which another has previously made application, 
or which so nearly resembles such trademark, or a 



R« 



40 

known trademark owned and used by another, as, in 
the opinion of the Commissioner, to be likely to be mis- 
taken therefor by the public, he may declare that an 
interference exists as to such trademark, and in every 
case of interference or opposition to registration he 
shall direct the examiner in charge of interferences to 
determine the question of the right of registration to 
such trademark and of the sufficiency of objections to 
registration, in such manner and upon such notice to 
those interested as the Commissioner may by rules pre- 
scribe. 

The Commissioner may refuse to register the mark 
against the registration of which objection is filed, or 
may refuse to register both of two interfering marks, or 
may register the mark, as a trademark, for the person 
first to adopt and use the mark, if otherwise entitled to 
register the same, unless an appeal is taken, as herein- 
after provided for, from his decision, by a party inter- 
ested in the proceeding, within such time (not less than/ 
twenty days) as the Commissioner may prescribe. 



Except as regards opposition, which is a new fea- 
ture of the trademark law, this section is merely 
declaratory of the practice as followed under the 
Act of 1881. 



Sec. 8. That every applicant for the registration of a 
trademark, or for the renewal of the registration of a 
trademark, which application is refused, or a party to 
an interference against whom a decision has been ren- 
dered, or a party who has filed a notice of opposition as 
to a trademark, may appeal from the decision of the ex- 
aminer in charge of trademarks, or the examiner in 
charge of interferences, as the case may be, to the Com- 




41 

missioner in person, having once paid the fee for such 
appeal. 

This section provides for an appeal direct to the * / 
Commissioner. Except that it requires a fee v 
($15 as specified in section 14) for such appeal, it is 
merely declaratory of the practice followed under 
the Act of 1881. In its wording the section closely 
follows Sec. 4909 of the Revised Statutes, which 
relates to appeals in applications for patent. 

Sec. 9. That if an applicant for registration of a 
trademark, or a party to an interference as to a trade- 
mark, or a party who has filed opposition to the registra- 
tion of a trademark, or party to an application for the 
cancellation of the registration of a trademark, is dissat- 
isfied with the decision of the Commissioner of Patents, 
he may appeal to the court of appeals of the District of 
Columbia, on complying with the conditions required in 
case of an appeal from the decision of the Commissioner 
by an applicant for patent, or a party to an interference 
as to an invention, and the same rules of practice and 
procedure shall govern in every stage of such proceed- 
ings, as far as the same may be applicable. 

This section corresponds in terms with section 
491-1 of the Revised Statutes relating to appeals 
from the decision of the Commissioner of Patents 
in applications for patent as modified by the Act of 
February 9, 1893, creating the court of appeals of 
the District of Columbia. 

The Act of 1881 does not provide for an appeal 
from the decision of the Commissioner of Patents 
in trademark cases. As such cases often involve 
interests quite as valuable as are involved in appli- 
cations for patent, it would seem that appeals if 
provided for in the one class of cases should be pro- 
vided for in the other class. 

See in this connection the note to section 5. 




7 



42 

Sec. 10. That every registered trademark, and every 
mark for the registration of which application has been 
made, together with the application for registration of 
the same, shall be assignable in connection with the 
good will of the business in which the mark is used. 
Such assignment must be by an instrument in writing 
and duly acknowledged according to the laws of the 
country or State in which the same is executed; any 
such assignment shall be void as against any subsequent 
purchaser for a valuable consideration, without notice, 
unless it is recorded in the Patent Office within three 
months froni date thereof. The Commissioner shall 
keep a record of such assignments. 

Section 12 of the Act of 1881 authorizes the Com- 
missioner to record transfers of the right to use 
trademarks. 

There is no restriction upon such transfers in the 
Act of 1881. But it is well settled that the property 
right to a trademark is not transferable except with 
the transfer of the right to manufacture or sell the 
particular merchandise to which the trademark has 
been attached. (See Filkins v. Blackman, 13 
Blatchford, 440, quoting Dixon Crucible Company 
v. Guggenheim, Am. Trademark Cases, 559.) 

Sec. 11. That certificates of registration of trade- 
marks shall be issued in the name of the United States 
of America, under the seal of the Patent Office, and 
shall be signed by the Commissioner of Patents, and a 
record thereof, together with printed copies of the 
drawing and statement of the applicant, shall be kept 
in books for that purpose. The certificate shall state 
the date on which the application for registration was 
received in the Patent Office. Certificates of registra- 
tion of trademarks may be issued to the assignee of the 



43 

applicant, but the assignment must first be entered of 
record in the Patent Office. 

Written or printed copies of any records, books, 
papers, or drawings relating to trademarks belonging 
to the Patent Office, and of certificates of registration, 
authenticated by the seal of the Patent Office and certi- 
fied by the Commissioner thereof, shall be evidence in 
all cases wherein the originals could be evidence; and 
any person making application therefor and paying the 
fee required by law shall have certified copies thereof. 

This section is almost identical with section 4 of 
the Act of 1881, except that it provides that the cer- 
tificate of registration shall be under the seal of the 
Patent Office instead of under the seal of the Depart- 
ment of the Interior. The certificates are to be issued 
by the Commissioner of Patents, who should attach 
his seal, which is under his control, rather than the 
seal of the Department of the Interior. 

The second paragraph of this section corresponds 
in terms with the provisions of Section 892 of the 
Revised Statutes in reference to certified copies of 
the records of the Patent Office. 

Sec. 12. That a certificate of registration shall re- 
main in force for twenty years, except that in the case 
of trademarks previously registered in a foreign country 
such certificates shall cease to be in force on the day on 
which the trademark ceases to be protected in such 
foreign country, and shall in no case remain in force 
more than twenty years, unless renewed. Certificates 
of registration may be, from time to time, renewed for 
like periods on payment of the renewal fees required 
by this Act, upon request by the registrant, his legal 
representatives, or transferees of record in the Patent 
Office, and such request may be made at any time not 



44 

more than six months prior to the expiration of the 
period for which the certificates of registration were 
issued or renewed. Certificates of registration in force 
at the date at which this Act takes effect shall remain 
in force for the period for which they were issued, but 
shall be renewable on the same conditions and for the 
same periods as certificates issued under the provisions 
of this Act, and when so renewed shall have the same 
force and effect as certificates issued under this Act. 

By this section of the Act the life of a certificate 
of registration is changed from thirty years to 
twenty years. The purpose of this change is to 
make the term of such registration correspond with 
the term for which registration is granted by the 
international union for the registration of trade- 
marks. The right to the use of a trademark is 
perpetual, so long as the same is actually used in 
commerce. Such perpetual ownership of a mark 
is provided for by means of renewals of certificates, 
upon application made in accordance with the terms 
of the proposed bill. 

The change in the term is coupled with a reduc- 
tion of the fee for registration, from $25 to $10 
(See Sec. 14). Failure to renew registration is, in 
foreign countries, taken to mean abandonment of 
the claim of right to the mark. While failure to 
renew need not be taken as abandonment of what- 
ever rights the registrant may have under the com- 
mon law, it should be taken as an abandonment of 
whatever rights may accrue from registration. 
Many trademarks are, as a matter of fact, aban- 
doned within a few years after their first adoption, 
and it is in the interest of the public that 
marks which have thus ceased to be the subject of 
a claim of exclusive right should be dropped from 
the register within a shorter period than the thirty 
years for which certificates of registration were 
granted under the Act of 1881. 



45 

The provision with respect to trademarks pre- 
viously registered in a foreign country is substan- 
tially the same in effect as the provision contained 
in the Act of 1881. The right of foreign trademark 
owners to the benefits of the law of the United 
States rests on treaty agreements, and it is express- 
ly stipulated in many of these treaties that trade- 
marks shall cease to be protected here when they 
cease to be exclusive property in the country in 
which they originate. Substantially the same pro- 
vision is contained in the trademark laws of most 
foreign countries. 

The final sentence of this section preserves what- 
ever rights are secured by certificates of registra- 
tion now in force, but there is nothing in this or any 
section of this Act to prevent the owner of a trade- 
mark registered under the Act of 1881 from regis- 
tering under this Act, and thereby securing the ad- 
vantages provided for therein. 

Sec. 13. That whenever any person shall deem him- 
self injured by the registration of a trademark in the 
Patent Office he may at any time apply to the Com- 
missioner of Patents to cancel the registration thereof. 
The Commissioner shall refer such application to the 
examiner in charge of interferences, who is empowered 
to hear and determine this question, and who shall give 
notice thereof to the registrant. If it appear after a 
hearing before the examiner that the registrant was not 
entitled to the use of the mark at the date of his applica- 
tion for registration thereof, or that the mark is not 
used by the registrant, or has been abandoned, and the 
examiner shall so decide, the Commissioner shall cancel 
the registration. Appeal may be taken to the Com- 
missioner in person from the decision of examiner of 
interferences. 

The Committee on Patents of the House of Rep- 
resentatives in their report recommending the pas- 



46 

sage of the Act state as follows in reference to this 
section : 

By section 13 provision is made for the cancella- 
tion of registration of marks which may not have 
been entitled to registration. The only notice 
which is required, according to the provisions 
of the bill, of the application for the registra- 
tion of a trademark is the publication of the ap- 
plication once in the Official Gazette. The pur- 
pose of this provision is to give to the owner of a 
mark an opportunity to have a prior registration of 
his mark, if granted, canceled upon a proper show- 
ing. 

Sec. 14. That the following shall be the rates for 
trademark fees: 

On filing each original application for registration of 
a trademark, ten dollars : Provided, That an application 
for registration of a trademark pending at the date of 
the passage of this Act, and on which certificate of reg- 
istration shall not have issued at such date, may, at the 
option of the applicant, be proceeded with and regis- 
tered under the provisions of this Act without the pay- 
ment of further fee. 

On filing each application for renewal of the registra- 
tion of a trademark, ten dollars. 

On filing notice of opposition to the registration of a 
trademark, ten dollars. 

On an appeal from the examiner in charge of trade- 
marks to the Commissioner of Patents, fifteen dollars. 

On an appeal from the decision of the examiner in 
charge of interferences, awarding ownership of a trade- 
mark or canceling the registration of a trademark, to 
the Commissioner of Patents, fifteen dollars. 

For certified and uncertified copies of certificates of 
registration and other papers, and for recording trans- 
fers and other papers, the same fees as required by law 



47 

for such copies of patents and for recording assignments 
and other papers relating to patents. 

The fee for registration is reduced from twenty- 
five dollars for thirty years under the Act of 1881 to 
ten dollars for twenty years. 

The requirement for a fee for appeal is a new 
feature, but in view of the reduction of the registra- 
tion fee, such a requirement is not unreasonable. 

It is to be noted that this section recognizes the 
justice of permitting those who have filed applica- 
tions under the Act of 1881, and have paid the ex- 
cessive fee required by that Act, to secure the ad- 
vantages of the present Act without further fee. 

Sec. 15. That sections forty-nine hundred and thirty- 
five and forty-nine hundred and thirty-six of the Revised 
Statutes, relating to the payment of patent fees and to 
the repayment of fees paid by mistake, are hereby made 
applicable to trademark fees. 

Sec. 16. That the registration of a trademark under 
the provisions of this Act shall be prima facie evidence 
of ownership. Any person who shall, without the con- 
sent of the owner thereof, reproduce, counterfeit, copy, 
or colorably imitate any such trademark and affix the 
same to merchandise of substantially the same descrip- 
tive properties as those set forth in the registration, or 
to labels, signs, prints, packages, wrappers, or recep- 
tacles intended to be used upon or in connection with 
the sale of merchandise of substantially the same de- 
scriptive properties as those set forth in such registra- 
tion, and shall use, or shall have used, such reproduction, 
counterfeit, copy, or colorable imitation in commerce 
among the several States, or with a foreign nation, or 
with the Indian tribes, shall be liable to an action for 
damages therefor at the suit of the owner thereof; and 



48 

whenever in any such action a verdict is rendered for 
the plaintiff, the court may enter judgment therein for 
any sum above the amount found by the verdict as the 
actual damages, according to the circumstances of the 
case, not exceeding three times the amount of such 
verdict, together with the costs. 

.* 
The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the Act, state, in reference to this section, as 
follows : 

A remedy at law is given to the owners of trade- 
marks by Section 16. The provision contained in 
this section to give the court power to enter a judg- 
ment on a verdict for three times the amount of the 
verdict, in such cases as the court may deem it ad- 
visable, is new in the law of trademarks. Similar 
provisions exist in the copyright and patent laws 
and in other statutes. The difficulty of proving 
exact damages in cases of this character is well 
understood. It has seemed to your committee 
proper that the Government, which has made pro- 
vision for the registration of trademarks, should 
accord to the owners thereof, who have complied 
with the terms of the statute, full and complete re- 
dress for violation of their rights. By another sec- 
tion of the bill provision is made for designating 
registered trademarks by printing under the trade- 
mark the fact that it is registered, as is done in 
cases of patents, so that any person who imitates 
or counterfeits a trademark will do so with notice, 
and should therefore be held to a strict account- 
ability for the fraud committed. 

Sec. 17. That the circuit and territorial courts of the 
United States and the supreme court of the District of 
Columbia shall have original jurisdiction, and the circuit 
courts of appeal of the United States and the court of 
appeals of the District of Columbia shall have appellate 



49 

jurisdiction of all suits at law or in equity respecting 
trademarks registered in accordance with the provisions 
of this Act, arising under the present Act, without re- 
gard to the amount in controversy. 

This section defines what United States courts 
shall have jurisdiction of suits involving the rights 
to registered trademarks. 

Sec. 1 8. That writs of certiorari may be granted by 
the Supreme Court of the United States for the review 
of cases arising under this Act in the same manner as 
provided for patent cases by the Act creating the circuit 
court of appeals. 

This corresponds in terms with the section of the 
statutes relating to patent cases. 

Sec. ig. That the several courts vested with jurisdic- 
tion of cases arising under the present Act shall have 
power to grant injunctions, according to the course and 
principles of equity, to prevent the violation of any right 
of the owner of a trademark registered under this Act, 
on such terms as the court may deem reasonable; and 
upon a decree being rendered in any such case for 
wrongful use of a 'trademark the complainant shall be 
entitled to recover, in addition to the profits to be ac- 
counted for by the defendant, the damages the com- 
plainant has sustained thereby, and the court shall assess 
the same or cause the same to be assessed under its di- 
rection. The court shall have the same power to in- 
crease such damages, in its discretion, as is given by 
section sixteen of this Act for increasing damages found 
by verdict in actions of law ; and in assessing profits the 
plaintiff shall be required to prove defendant's sales 



50 

only; defendant must prove all elements of cost which 
are claimed. 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the Act, state as follows in reference to this 
section: 

By Section 19 provision is made for proceedings 
in equity against the infringer of a registered trade- 
mark. This section corresponds in terms with Sec- 
tion 4,921 of the Revised Statutes relating to patent 
cases, except that it specially provides the manner 
in which profits shall be ascertained. Under exist- 
ing rules it is necessary for the complainant to 
prove sales and costs with entire and absolute accu- 
racy. The only persons having knowledge of the 
cost of making the sales are the defendant or some 
one in his employ. It has seemed, therefore, only 
fair and just that if the complainant proves the sales, 
the defendant should be required to produce evi- 
dence of the expenses he was put to in making such 
sales as an offset against the sales proven by the 
complainant. 

Sec. 20. That in any case involving the right to a 
trademark registered in accordance with the provisions 
of this Act, in which the verdict has been found for the 
plaintiff, or an injunction issued, the court may order 
that all labels, signs, prints, packages, wrappers, or re- 
ceptacles in the possession of the defendant, bearing the 
trademark of the plaintiff or complainant, or any repro- 
duction, counterfeit, copy, or colorable imitation thereof, 
shall be delivered up and destroyed. Any injunction 
that may be granted upon hearing, after notice to the 
defendant, to prevent the violation of any right of the 
owner of a trademark registered in accordance with the 
provisions of this Act, by any circuit court of the United 
States, or by a judge thereof, may be served on the 



51 

parties against whom such injunction may be granted 
anywhere in the United States where they may be found, 
and shall be operative, and may be enforced by proceed- 
ings to punish for contempt, or otherwise, by the court 
by which such injunction was granted, or by any other 
circuit court, or judge thereof, in the United States, or 
by the supreme court of the District of Columbia, or a 
judge thereof. The said courts, or judges thereof, shall 
have jurisdiction to enforce said injunction, as herein 
provided, as fully as if the injunction had been granted 
by the circuit court in which it is sought to be enforced. 
The clerk of the court or judge granting the injunction 
shall, when required to do so by the court before which 
application to enforce said injunction is made, transfer 
without delay to said court a certified copy of all the 
papers on which the said injunction was granted that 
are on file in his office. 

The provisions of this section are taken from Sec- 
tion 4,966 of the Revised Statutes relative to copy- 
rights, and are equally applicable, or should be, to 
trademarks as to copyrights. 

Sec. ax. That no action or suit shall be maintained 
under the provisions of this Act in any case when the 
trademark is used in unlawful business, or upon any ar- 
ticle injurious in itself, or which mark has been used 
with the design of deceiving the public in the purchase 
of merchandise, or has been abandoned, or upon any 
certificate of registration fraudulently obtained. 

This section is practically the same as Section 8 
of the Act of 1881. The only change in the section 
relates to trademarks which have been abandoned. 

Sec. 22. That whenever there are interfering regis- 
tered trademarks, any person interested in any one of 



52 

them may have relief against the interfering registrant, 
and all persons interested under him, by suit in equity 
against the said registrant; and the court, on notice to 
adverse parties and other due proceedings had accord- 
ing to the course of equity, may adjudge and declare 
either of the registrations void in whole or in part, ac- 
cording to the interest of the parties in the trademark, 
and may order the certificate of registration to be deliv- 
ered up to the Commissioner of Patents for cancellation. 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the Act, state, in reference to this section, as 
follows : 

Section 22 provides for the cancellation of cer- 
tificates of registration which have been granted to 
applicants who are subsequently found not to be 
the owners of the marks. This section provides 
only for the cancellation of trademarks which are 
in conflict with other registered trademarks. Sec- 
tion 13 provides that any person, whether the owner 
of any registered trademark or not, who may deem 
himself injured by the registration of a mark, may 
make application to the Commissioner of Patents 
to cancel the registration thereof, and proceedings 
are provided for any such case protecting the rights 
of the registrant of the mark. 

Sec. 23. That nothing in this Act shall prevent, lessen, 
impeach, or avoid any remedy at law or in equity which 
any party aggrieved by any wrongful use of any trade- 
mark might have had if the provisions of this Act had 
not been passed. 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the Act, state as follows in reference to this 
section : 



53 

Section 23 is identical with Section 10 of the Act 
of 1881 on the subject of trademarks, and is in- 
tended to give the user of a commercial mark, 
whether such mark comes within the technical defi- 
nition of a trademark under the provisions of the 
proposed Act the right to have such remedy against 
those who make use of such mark with fraudulent 
intent, as is given by the courts under the doctrine 
of unfair competition, and to further provide that 
the courts of the United States shall continue to 
have such jurisdiction as they now have to enforce 
relief in such cases. 

Sec. 24. That all applications for registration pending 
in the office of the Commissioner of Patents at the time 
of the passage of this Act may be amended with a view 
to bringing them, and the certificate issued upon such 
applications, under its provisions, and the prosecution 
of such applications may be proceeded with under the 
provisions of this Act. 

Sec. 25. That any person who shall procure registra- 
tion of a trademark, or entry thereof, in the office of the 
Commissioner of Patents by a false or fraudulent decla- 
ration or representation, oral or in writing, or by any 
false means, shall be liable to pay any damages sustained 
in consequence thereof to the injured party, to be recov- 
ered by an action on the case. 

This section is identical with Section 9 of the Act 
of 1881. 

Sec. 26. That the Commissioner of Patents is author- 
ized to make rules and regulations, not inconsistent with 
law, for the conduct of proceedings in reference to the 
registration of trademarks provided for by this Act. 

Sec. 27. That no article of imported merchandise 
which shall copy or simulate the name of any domestic 



54 

manufacture, or manufacturer or trader, or of any manu- 
facturer or trader located in any foreign country which, 
by treaty, convention, or law affords similar privileges 
to citizens of the United States, or which shall copy or 
simulate a trademark registered in accordance with the 
provisions of this Act, or shall bear a name or mark cal- 
culated to induce the public to believe that the article 
is manufactured in the United States, or that it is manu- 
factured in any foreign country or locality other than the 
country or locality in which it is in fact manufactured, 
shall be admitted to entry at any custom-house of the 
United States; and, in order to aid the officers of the 
customs in enforcing this prohibition, any domestic man- 
ufacturer or trader, and any foreign manufacturer or 
trader, who is entitled under the provisions of a treaty, 
convention, declaration, or agreement between the 
United States and any foreign country to the advan- 
tages afforded by law to citizens of the United States in 
respect to trademarks and commercial names, may re- 
quire his name and residence, and the name of the lo- 
cality in which his goods are manufactured, and a copy 
of the certificate of registration of his trademark, issued 
in accordance with the provisions of this Act, to be 
recorded in books which shall be kept for this purpose 
in the Department of the Treasury, under such regula- 
tions as the Secretary of the Treasury shall prescribe, 
and may furnish to the Department facsimiles of his 
name, the name of the locality in which his goods are 
manufactured, or of his registered trademark; and 
thereupon the Secretary of the Treasury shall cause one 
or more copies of the same to be transmitted to each col- 
lector or other proper officer of customs. 

The provisions of this section are taken substan- 
tially from Section n of the Act of Congress ap- 



55 

proved July 24, 1897, entitled "An act to provide 
revenue for the Government and to encourage the 
industries of the United States." Its provisions 
have been amended so as to give to manufacturers 
located in foreign countries — which, by treaty stip- 
ulations, give similar privileges to the United 
States — the same advantages as are given to do- 
mestic manufacturers. 

Sec. 28. That it shall be the duty of the registrant to 
give notice to the public that a trademark is registered, 
either by affixing thereon the words "Registered in U. S. 
Patent Office," or abbreviated thus, "Reg. U. S. Pat. 
Off.," or when, from the character or size of the trade- 
mark, or from its manner of attachment to the article 
to which it is appropriated, this can not be done, then 
by affixing a label containing a like notice to the pack- 
age or receptacle wherein the article or articles are in- 
closed ; and in any suit for infringement by a party fail- 
ing so to give notice of registration no damages shall be 
recovered, except on proof that the defendant was duly 
notified of infringement, and continued the same after 
such notice. 

The Committee on Patents of the House of Rep- 
resentatives, in their report recommending the pas- 
sage of the Act, state as follows with reference to 
this section: 

Section 28 provides that it shall be the duty of 
the registrant of a trademark to give notice to the 
public that a trademark is registered either by affix- 
ing thereon the words "Registered in U. S. Patent 
Office," or abbreviated thus, "Reg. U. S. Pat. Off." 
If counterfeiting or imitation of a trademark is to 
subject the counterfeiter or imitator to the penalties 
by way of trebling of damages provided for under 
the provisions of the bill submitted herewith, then 
it seems entirely proper that some notice should be 



LofC. 



56 

given to the public of the registration of the trade- 
mark. The provisions for such notice in the section 
referred to follow the language of the statutes on 
the subject of patents. 

Sec. 29. That in construing this Act the following 
rules must be observed, except where the contrary in- 
tent is plainly apparent from the context thereof: The 
United States includes and embraces all territory which 
is under the jurisdiction and control of the United 
States. The word "States" includes and embraces the 
District of Columbia, the Territories of the United 
States, and such other territory as shall be under the 
jurisdiction and control of the United States. The terms 
"person" and "owner," and any other word or term used 
to designate the applicant or other entitled to a benefit 
or privilege or rendered liable under the provisions of 
this Act, include a firm, corporation, or association, as 
well as a natural person. The term "applicant" and 
"registrant" embrace the successors and assigns of such 
applicant or registrant. The term "trademark" includes 
any mark which is entitled to registration under the 
terms of this Act and whether registered or not, and a 
trademark shall be deemed to be "affixed" to an article 
when it is placed in any manner in or upon either the 
article itself or the receptacle or package or upon the 
envelope or other thing in, by, or with which the goods 
are packed or inclosed or otherwise prepared for sale 
or distribution. 

Section 29 defines the terms used in other sec- 
tions of the bill, and by making such definition of 
the terms it has prevented considerable repetition 
in other parts of the bill. 

The purpose of this section is to enable persons 
located in Porto Rico, the Philippines, and any 



57 

other territory which is, for the time being, under 
the jurisdiction and control of the United States, to 
secure the advantages of this act for the protection 
of their trademarks ; and to make it clear that "com- 
merce among the several States" is not to be lim- 
ited to commerce among the States in a technical 
sense, but is to be construed to include commerce 
between the District of Columbia and a State, be- 
tween a State and a Territory, between a State and 
Porto Rico, or the Philippines, between a Territory 
and another Territory, between a Territory and 
Porto Rico, or the Philippines, and between Porto 
Rico and the Philippines; in other words, between 
any portion of the territory of the United States 
having its distinctive government, whether State, 
Territorial, or other form of government, and any 
other portion. 

Sec. 30. That this Act shall be in force and take effect 
April first, nineteen hundred and five. All Acts and 
parts of Acts inconsistent with this Act are hereby re- 
pealed except so far as the same may apply to certifi- 
cates of registration issued under the Act of Congress 
approved March third, eighteen hundred and eighty-one, 
entitled, "An Act to authorize the registration of trade- 
marks and protect the same," or under the Act approved 
August fifth, eighteen hundred and eighty-two, entitled, 
"An Act relating to the registration of trademarks." 

Approved, February 20, 1905. 



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